Judgment :- S.Sardar Zackria Hussain, J. The sole accused in S.C.No.80 of 1991 on the file of the learned III Additional Sessions Judge, Dharmapuri District at Krishnagiri is the appellant. As per judgment dated 25.4.1997 in the above said Sessions Case, the appellant was convicted and sentenced to undergo life imprisonment for the offence under section 302 I.P.C. and two months rigorous imprisonment for the offence under section 447 I.P.C., which is under challenge in this appeal. 2. In the final report filed by the Inspector of Police, Pennaharam Police Station, it is stated that on 18.9.1990 at about 9.00 a.m. due to previous enmity in respect of land dispute, the accused viz., Perumal caused murder of his step brother, Chinnadurai by stabbing him above the chest with knife 3. The fact that leads to the filing of this appeal are as follows:- The accused Perumal is the son of P.W.2, Govindan through his first wife, Lakshmi. P.W.1 Maadhu is the elder son and the deceased Chinnadurai was the younger son of P.W.2 and his second wife, Myli, P.W.3. P.W.4, Banumathi is the wife of P.W.1. The accused Perumal and the deceased Chinnadurai are the sons of P.W.2 through his first and second wife respectively. P.W.1's parents, wife and P.W.5, Iyandurai were engaged in rearing of silk-worms. P.W.2 was having 20 acres of land in Sarandapallam and some lands were with irrigational facilities. Properties have been divided 15 years before. After partition, P.Ws.1 to 4 and the deceased Chinnadurai were residing in the same house. There was dispute between them and the accused in respect of poramboke land of one and half acres situated on the south of the house. Due to rain in the night of 17.9.1990, P.W.1 had been ploughing the land on 18.9.1990 i.e., on Tuesday at about 9.00 a.m. At that time the accused quarrelled with P.W.1 about his ploughing the land and going to beat him. The deceased came to the rescue of his elder brother P.W.1 and when questioned, the accused by taking knife hidden in his lungi stabbed him above the left chest of the deceased forcibly and took out the knife. When the accused came and try to stab P.W.1, the deceased shouted, After running some distance the deceased fell down in the paddy field. When the accused came and try to stab P.W.1, the deceased shouted, After running some distance the deceased fell down in the paddy field. On hearing the noise, P.Ws.2 to 4 came there and saw the accused running towards northern side with knife The deceased was taken in a cot and was kept in the pial of the house of P.W.1, where he died. P.W.1 went to Pennaharam Police Station and preferred a complaint Ex.P-1. 4. P.W.10, Sub Inspector of Police, Pennaharam Police Station on receiving the complaint Ex.P-1, registered a case in Crime No.490/91 for offence under section 302 I.P.C. Ex.P-10 is the printed First Information Report. He sent the printed F.I.R. to the Judicial Magistrate, Palacode and concerned high officials. 5. On receiving the printed F.I.R. P.W.13 visited the scene of occurrence at 6.30 a.m. on 19.9.1990 and prepared observation mahazar Ex.P-2 in the presence of witnesses Kanagasapabathy and Kandhasamy. He recovered blood stained sand, M.O.2 and sample sand, M.O.3 from the scene of occurrence under mahazar Ex.P-3. At 7.20 a.m. he recovered M.O.4, blood stained sand and M.O.5 sample sand in the presence presence of P.W.7 and Kandhasamy from the place of paddy field where the deceased fell down under the mahazar Ex.P-7. He prepared rough sketch Ex.P-17. He conducted inquest on the body of the deceased in the presence of panchayatars from 7.30 a.m. to 10.30 a.m. and Ex.P-18 is the inquest report. He recovered blood stained sand, M.O.6 and sample sand, M.O.7 from the pial of the house of P.W.1 where the deceased succumbed to injuries. P.W.13 made arrangements to take photographs of the body of the deceased through the photographer P.W.8. The photographs are M.O.9 series and the negatives are M.O.10 series. He sent the body of the deceased for post-mortem through the constable P.W.9 with a requisition letter to the Government Hospital, Dharmapuri. 6. P.W.12, the Doctor conducted autopsy on the body of the deceased and found the following injuries:- "Ex. injuries :- shaped 1.1/2" x 1" x depth not able to trace, perforating wound over the left side of the chest 1" below the clavicle and 1/2" lateral to sternum. Int. 6. P.W.12, the Doctor conducted autopsy on the body of the deceased and found the following injuries:- "Ex. injuries :- shaped 1.1/2" x 1" x depth not able to trace, perforating wound over the left side of the chest 1" below the clavicle and 1/2" lateral to sternum. Int. Examination:- Perforating injury of 1.1/2" x 1.1/2" x 1.1/2" size over the antero medial portion of left lung perforating injury of 1" x 1/2" x 1/2" size over the anterior surface of the heart near pulmonary artery Haemothora-X present." The Doctor has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained 30 to 36 hours prior to autopsy. Post-mortem certificate is Ex.P-16. 7. After post-mortem, the police constable, P.W.9 recovered M.O.11, banian, M.O.12, green colour jatti, M.O.13, stripped blood stained lungi and M.O.14, waist-cord. He handed over the above said Material Objects to the police station. 8. P.W.13 sent the M.Os.1 to 8 and 11 to 13 for chemical analysis with a requisition letter under Ex.P-11. The letter sent by the Judicial Magistrate for chemical analysis is Ex.P-12. Chemical analyst reports are Exs.P-13 and P-14. Ex.P-14 is with respect to mud particles. Serologist report is Ex.P-15(blood group report). On 20.9.1990 at 5.15 p.m. P.W.13 arrested the accused in the tea shop at Chinnapatti bus stand. The accused gave confession statement, in the presence of P.W.7 and one Manickam, the admissible portion of which is marked as Ex.P-6. The accused took P.Ws.7, 13 and other witnesses and produced M.O.1 knife near the house of Govindan, P.W.2 at Sarandapallam. P.W.13 recovered the same under mahazar Ex.P-7. P.W.13 seized blood stained lungi(M.O.8) of the accused under mahazar Ex.P-8 in the presence of P.W.7 and Manickam. P.W.13, after completing the investigation, filed the final report. 9. The trial court after considering the evidence of P.Ws.1 to 13 adduced on the side of the prosecution and Exs.P-1 to P-18 and material objects M.Os.1 to 14 produced and marked on the side of the prosecution, found the accused guilty for both the offences under sections 447 and 302 I.P.C. and convicted and sentenced the accused as stated above, which is under challenge in this appeal. 10. The learned counsel for the appellant/accused argued that there have been inordinate delay in preferring the complaint. 10. The learned counsel for the appellant/accused argued that there have been inordinate delay in preferring the complaint. The learned counsel further argued that the prosecution has failed to prove the guilt of the accused and the conviction awarded to the accused is improper as the same was awarded on the basis of the sole witness, P.W.1, who is the elder brother of the deceased and as such, he is an interested witness. P.Ws.2 to 4 came to the scene of occurrence only later and as such, no reliance can be placed on their evidence. The learned counsel further submitted that there have been discrepancy in the evidence of P.Ws.2 to 4 as against the evidence adduced by P.W.1. It is further submitted that medical evidence has not supported the case of the prosecution. 11. Mr.Abudu Kumar Rajarathinam, the learned Government Advocate (Criminal Side), argued that the Sessions Court on considering the evidence of the prosecution witnesses, which is cogent and convincing and exhibits and material objects produced and marked on the side of the prosecution has rightly found the accused guilty. 12. The entire case of the prosecution rests on the evidence of sole ocular witness, P.W.1, who is the elder brother of the deceased. As per the complaint Ex.P-1, preferred by P.W.1 and as per his evidence, it is clear that on the date of occurrence, i.e., on 18.9.1990 at about 9.00 a.m., when P.W.1 was ploughing his land, the accused came there and quarrelled with them about ploughing the land, for which, P.W.1 replied that he is ploughing his land only and when his younger brother of P.W.1, the deceased Chinnadurai came and intervened, the accused took the knife hidden in the lungi and stabbed the deceased above the left side of the chest of the deceased by holding the knife on his right hand, even when the deceased saying that he was ploughing only in his land and not in the land of the accused. The deceased shouted to P.W.1 to run away from the place. P.W.1 was chased by the accused. When P.W.1 was running towards west, the accused was running towards north. When P.W.1 came, he saw the deceased fell down in the paddy field and blood was oozing out from his chest. 13. On hearing the noise, P.Ws.2 and 3 came there. P.W.3, the wife of P.W.1 brought a cot for the deceased. P.W.1 was chased by the accused. When P.W.1 was running towards west, the accused was running towards north. When P.W.1 came, he saw the deceased fell down in the paddy field and blood was oozing out from his chest. 13. On hearing the noise, P.Ws.2 and 3 came there. P.W.3, the wife of P.W.1 brought a cot for the deceased. The distance being 150 feet away from the house of P.W.2, P.Ws.2 to 4 came to the scene of occurrence and saw the deceased with injuries. They also saw the accused, who was running towards north and P.W.1, who was running towards west and coming back from eastern side. Though P.Ws.2 to 4 did not witness the occurrence, they saw the accused running towards north with M.O.1, knife after the occurrence. As such, there is clinching evidence on the side of the prosecution with regard to the occurrence. During which time, the accused stabbed the deceased with knife, M.O.1. Therefore, the evidence adduced by P.Ws.2 to 4 tallies with the complaint, Ex.P-1 preferred by P.W.1 and also with the medical evidence. As seen from the post-mortem certificate, Ex.P.16, P.W.12, the Doctor noted the external injuries and corresponding internal injuries. The external injuries shaped 1.1/2" x 1" x depth not able to trace, perforating wound over the left side of the chest 1" below the clavicle and 1/2" lateral to sternum, could have been caused due to the stabbing by the accused by using M.O.1, knife The age of the accused was 38 years at the time of occurrence. Therefore, by using M.O.1 with much force, such external injuries as well as internal injuries could have been caused by the accused to the deceased. Knife, M.O.1 was recovered from the accused when he was arrested on 20.9.1990 at 5.15 p.m. in the Tea shop at Chinnapatti Bus stand. During which time, the accused also gave confession statement (admissible portion is Ex.P-6) and took P.W.13 and other witnesses and produced M.O.1 knife near the house of P.W.2, which was recovered under mahazar Ex.P-7 in the presence of P.W.7 and Manickam. 14. P.Ws.1 to 4 as well as the accused and the deceased are all from same Village by name Sarandapallam. The occurrence took place on 18.9.90. 14. P.Ws.1 to 4 as well as the accused and the deceased are all from same Village by name Sarandapallam. The occurrence took place on 18.9.90. Therefore, when P.Ws.1 to 4 during examination on 3.3.1997 in the Court of Sessions, could have been stated that the accused was brought by the police on the same date of occurrence at about 5.00 p.m., which may not be possible, as the accused was arrested only on 20.9.1990 at about 5.15 p.m. in a tea shop at Chinnapatti bus stand. Investigation Officer, P.W.13, has clearly stated in his evidence about the arrest of the accused on 20.9.1990. During which time, he gave confession statement, the admissible portion of which is Ex.P-6, in the presence of P.W.7 and Manickam and took them and produced M.O.1 knife near the house of P.W.2. P.W.13 recovered the knife M.O.1 under the mahazar Ex.P-7. When the accused was questioned under Section 313 Cr.P.C. with regard to incriminating evidence let in through the prosecution witnesses, he has admitted that he was produced on 21.9.1990 at 1.00 p.m. before the Judicial Magistrate for remand and he has not stated that he was taken to the scene of occurrence at about 5.00 p.m. on 18.9.1990. He has also not stated that he was kept in illegal custody from 18.9.1990 till such time he was arrested which according to the prosecution was on 20.9.1990 at 5.15 p.m. 15. On chemical examination, except from sample sand, in all the material objects including the knife, M.O.1, lungi, banian and jatti of the accused seized and also in the lungi of the deceased, human blood was detected. 16. As rightly pointed out by the Sessions Court, the delay in preferring the complaint has been satisfactorily explained by P.W.1. After the occurrence at about 9.00 a.m., he went to the house of Village Administrative Officer at 10.00 a.m. and then only went to the police station, in which it appears that there was some delay, which could have been caused due to the fact that P.Ws.1 and 2 are innocent villagers. The printed First Information Report registered at 7.00 p.m. and reached the Court of Judicial Magistrate without any delay at 8.00 p.m. 17. Therefore, it is clear that the accused caused the death of the deceased by stabbing him with M.O.1 knife at the time of occurrence due to land dispute between them. The printed First Information Report registered at 7.00 p.m. and reached the Court of Judicial Magistrate without any delay at 8.00 p.m. 17. Therefore, it is clear that the accused caused the death of the deceased by stabbing him with M.O.1 knife at the time of occurrence due to land dispute between them. The accused is the son of P.W.2 through his first wife while the deceased and his elder brother P.W.1 are his sons through his second wife P.W.3. P.W.2 owned about 20 acres of dry land and also some land with irrigation facility and the properties were partitioned about 15 years before the occurrence, in which P.W.1 was allotted southern load land about 1-1/2 acres and the accused used to quarrel with P.W.1 whenever he ploughed the said land for the past two years before the occurrence. P.W.6 compromised between them. On the date of occurrence, the accused came and quarrelled with P.W.1 when he was ploughing the land and when the deceased, the younger brother of P.W.1 intervened, the accused took knife, M.O.1 and stabbed him with force above the left chest and took out the knife and the deceased after running some distance fell down in the paddy field and he was taken in the cot and kept in the pial of the house of P.W.1 where he died. Therefore, the act of the accused in causing the death of the deceased by stabbing him with knife M.O.1 is only upon a sudden quarrel and it was not done with pre-meditation. Further, the accused stabbed the deceased only once without any intention for causing death of the deceased. As such, the offence under Section 304 Part-II, I.P.C. is attracted, which is made out instead of under Section 302 I.P.C. besides the offence under Section 447 I.P.C. 18. In the light of the discussions made above, the appeal is allowed partly and the appellant/accused is found guilty for the offence under Section 304 Part-II I.P.C. and sentenced to undergo rigorous imprisonment for five years instead of under Section 302 I.P.C. and the sentence awarded for the offence under Section 447 I.P.C. is confirmed, which sentence shall run concurrently with the sentence of five years now awarded. The period of sentence already undergone is ordered to be set off under Section 428 Cr.P.C. The accused shall surrender to his bail bond. The period of sentence already undergone is ordered to be set off under Section 428 Cr.P.C. The accused shall surrender to his bail bond. The Third Additional Sessions Judge, Dharmapuri, is directed to take steps to secure the custody of the appellant/accused to undergo the remaining period of sentence.